Strasbourg Court dismisses challenges to bans on ritual slaughter without stunning for Halal and Kosher meat
14 February 2024
Belgian Muslims and others v Belgium (Application no.s 166760/22 and 10 others)
This is a rare case involving the welfare of non-human animals balanced against the rights in the Convention. In the Court’s own words, “this is the first time that the Court has had to rule on the question of whether the protection of animal welfare can be linked to one of the aims referred to in paragraph 2 of the Article 9 of the Convention.” Thank you to Joshua Rozenberg for alerting me to this important ruling.
In his Concurring Opinion Judge Yüksel gives a useful brief description of what was at stake here.
“The case concerns decrees promulgated under Belgian domestic law which require, in the interests of animal welfare, stunning prior to the slaughter of animals. The applicants, who are of Muslim or Jewish faith, claim that the prior stunning in question would prevent them from carrying out ritual slaughter in accordance with the precepts of their religion, which would constitute an interference and therefore a violation of their right to respect for their religion within the meaning of Article 9 of the Convention
… At the heart of the case are therefore two questions: i) whether considerations linked to animal welfare can constitute a legitimate aim for the purposes of Article 9 § 2 of the Convention and ii) whether the contested measure did not actually go beyond what is necessary in a democratic society.” [para 3 of the Opinion]
The full judgment is available only in French. A summary of the salient points follows.
The proposed laws under attack
The slaughter of food animals without prior stunning has been banned in a number of countries signatory to the Convention, in the interests of animal welfare. However, both Jewish and Islamic rituals require maximum bleeding of the animal for the resultant carcass to satisfy the requirements of religious laws. Moreover, both rituals require the animal to be healthy and in good condition at the time of slaughter, and to die as a result of blood loss. But scientific research has shown that the fear that stunning would have a negative impact on bleeding is unfounded. “Electronarcosis” (see image above) is a reversible (non-lethal) stunning method that is possible for some smaller species of food animals (pigs, sheep and goats). This means that if the throat is cut immediately after this stunning method, the animal has indeed died solely of blood loss.
For these reasons, a number of regional legislatures in Flanders and Wallonia decided that the application of reversible, non-lethal stunning in the practice of ritual slaughter is a proportionate measure which respects the spirit of ritual slaughter in the context of freedom of religion and takes full account of the welfare of the animals concerned. Consequently, the obligation to use electronarcosis for slaughtering according to special methods required for religious rituals at least does not disproportionately infringe freedom of religion.
The problem is that this is not a method that works on cattle, whether calves or adult animals. When these animals are slaughtered with prior stunning, the “pithing” device is used, which not only causes immediate loss of consciousness and insensitivity, but also tissue damage to the brain. “Pithing” describes the practice of physically disrupting the brain and rostral part of the spinal cord. The mechanical damage to the brain stem prevents the animal from regaining consciousness and makes the stunning irreversible.
The death of cattle following pithing and subsequent throat cutting is caused by loss of blood, not brain damage. This stunning method therefore also satisfies the religious requirement that the animal can only die by bleeding.
These measures were introduced in order to organise killing procedures so that animals are spared as much stress and suffering as possible at the time of killing. As the respondent government submitted,
” [T]he suffering of animals due to the practice of slaughter without stunning is a matter of concern to citizens, politicians, animal protection associations, veterinarians, associations representing the agricultural sector and the Belgian federation of slaughterhouses.”
These measures were strongly contested in the Belgian courts. In answer to the argument that this interfered with the applicants’ right to free exercise of religion under Article 9 of the Convention, the authors of the proposed changes to slaughter rules maintained that this right is not absolute, and society can therefore make it subject to certain rules.
“In any event, the protection of animals at the time of slaughter or killing is a matter of public interest. Animal welfare is a European Community value enshrined in Article 13 of the Treaty on the Functioning of the European Union. The Constitutional Court and the Conseil d’État has already confirmed that this protection pursues a legitimate aim of general interest, which may lead to restrictions on freedoms.” [para 6.3]
Arguments before the Strasbourg Court
The applicants complained – as they did before the Belgian Constitutional Court – of a violation of their right to freedom of religion in that, as a result of the decrees regarding stunning, it would become difficult, if not impossible, for Jewish and Muslim believers to slaughter animals in accordance with the precepts of their religion or to obtain meat from animals slaughtered in accordance with those religious precepts.
The applicants also pointed out that the Convention does not recognise the protection of animal welfare as a legitimate aim which can justify an attack on the freedom to manifest one’s religion. The Convention, they argued, does not grant any rights to animals and its material and personal scope is limited to human beings. There could therefore be no question of balancing human rights with the interests of animals, nor of extending the protection of morality to the protection of animal welfare. Here is the central plank of their argument:
“the interference does not pursue any of the legitimate aims contained in Article 9 § 2 of the Convention since the ban on ritual slaughter without stunning was only justified by the protection and respect for animal welfare. The aim of this interference cannot be linked to one of the goals provided for by the said provision because the [Convention provisions] are all directly or indirectly oriented towards the idea of preserving the rights and interests of individuals. Thus, linking the aim pursued to public morality would have the consequence of distorting the letter of the Convention as well as its spirit, and would constitute a radical change of paradigm by affirming the supremacy of the opinion of a fraction of the population concerned with the welfare of animals to justify the virtual obliteration of an essential aspect of the freedom of religion of another part of the population.” [para 74]
In answer to this, the government referred to the parliamentary work behind these reforms. This reported on a sociological study carried out in Belgium as well as the almost unanimous result of the votes in the parliaments concerned, all of which reflected an increased sensitivity vis a vis animal welfare in current society and the wider social consensus in favour of the disputed reforms. It concluded that, even if the Strasbourg Court has never yet recognised animal welfare as one of the legitimate aims authorised by paragraph 2 of Article 9 of the Convention, nothing would prevent it from doing so now or in the future. The respondent government also maintained that there was a reasonable link of proportionality between the contested measure and the aim pursued. Referring to scientific studies and parliamentary work carried out in this case, the government maintained that this measure would ensure animal well-being and would constitute the most appropriate measure to limit the suffering of the animal at the time of its death. Any other lesser measure would not prevent serious harm to animal welfare. [para 77]
The Government also maintained that the objective of preventing, during slaughter, any avoidable suffering to animals intended for consumption fell under Article 9 § 2 of the Convention, within the protection of morals as well as as well as the protection of the rights and freedoms of people who value animal welfare in their outlook on life. [para 90]
The Court dismissed all of the applications (details of which are set out in the appendix to the judgment).
Reasoning behind the Court’s decision
The Court observed at the outset that the decrees challenged by the applicants did not contain a ban on ritual slaughter as such. The decrees provide that, barring a limited number of exceptions, the killing of animals, including ritual slaughter, may only take place after the animal has been stunned. They specify that, when animals are slaughtered using special methods required for religious rites, the stunning procedure applied is reversible and does not result in the death of the anima
It is also significant that only eight member states of the EU allow slaughter without prior stunning. And this is not a recent phenomenon: In Denmark, stunning prior to ritual slaughter has been compulsory since 2014.
Unlike EU law, which establishes animal welfare as an objective of general interest of all laws emanating from the European Union, the Convention is not intended to protect this well-being as such. Thus, the Court noted that paragraph 2 of Article 9 of the Convention does not contain an explicit reference to the protection of animal welfare in the exhaustive list of legitimate aims likely to justify interference with the freedom of each person manifest one’s religion.
However, the Court continued, it “has already recognised on several occasions that the protection of animals constitutes a matter of general interest protected by Article 10 of the Convention (PETA Deutschland v. Germany, no. 43481/09, § 47, 8 November 2012, and Tierbefreier e.V. v. Germany, no. 45192/09, § 59, January 16, 2014). Even more so, in the case of Friend and others v. United Kingdom ((dec.), no. 16072/06, § 50, 24 November 2009) which concerned the ban on fox hunting, the Court considered under Article 11 of the Convention that such a ban pursued the legitimate aim of protecting morals, in the sense that it aimed to eliminate the hunting and slaughter of animals for sporting purposes in a manner which the legislator had judged to cause suffering and as morally and ethically wrong. Thus, the Court has already admitted that the prevention of animal suffering could justify interference with a right guaranteed by Article 11 of the Convention under the protection of morals.” [para 93]
Contrary to what the applicants alleged, the protection of public morals, to which Article 9 § 2 of the Convention refers, could not be understood as aiming solely at the protection of human dignity in relationships between people. In this regard, the Court observed that the Convention does not ignore the environment in which the people it aims to protect live (see in particular and among others, Mangouras v. Spain [GC], no. 12050/04 , § 41, ECHR 2010, and Hamer v. Belgium, no. 21861/03, § 79, ECHR 2007-V (extracts)), and in particular animals whose protection has already attracted the attention of the Court (Friend and others, aforementioned decision). Therefore, the Convention cannot be interpreted as promoting the absolute satisfaction of the rights and freedoms that it enshrines without regard to animal suffering. [para 95] [my italics]
The Court also emphasised that the notion of “morality” is inherently evolving. What may have been deemed morally acceptable at a given time may cease to be so after a certain time (see, in another area, Dudgeon v. the United Kingdom, 22 October 1981, § 60, Series A no. 45, § 60).
The Convention is a “living instrument” to be interpreted in the light of current living conditions and the conceptions prevailing today in democratic States. According to the Belgian Constitutional Court, the promotion of the protection and welfare of animals as sentient beings can be considered a moral value shared by many people in Flemish Region and Walloon Region, and the Strasbourg Court lent significant weight to this consideration.
This is a very significant step taken by the Court, and it is worth quoting its concluding paragraphs in full
” [99] The Court therefore sees no further reason to contradict the CJEU [in a previous judgment concerning animal welfare] and the Constitutional Court … which have each considered that the protection of animal welfare constitutes an ethical value to which contemporary democratic societies attach increasing importance and that it should be taken into account when assessing restrictions placed on the external manifestation of religious convictions.
[100] It follows from the above that the Court can take into account the growing importance attached to the protection of animal welfare, including when, as in the present case, it involves examining the legitimacy of the aim pursued by a restriction on the right to freedom to manifest one’s religion.
[101]. It thus considers that the protection of animal welfare can be linked to the notion of “public morality”, which constitutes a legitimate aim within the meaning of paragraph 2 of Article 9 of the Convention.”
The Court’s final conclusion was that the two contested decrees are based on a scientific consensus established around the observation that stunning prior to killing the animal constitutes the optimal means of reducing the suffering of the animal. animal at the time of its killing.
Based on scientific studies and carrying out extensive consultation with interested parties, the Belgian parliamentary proceedings behind the reforms had reached the conclusion that no less radical a measure could sufficiently achieve the objective of reducing harm to animal welfare at the time of slaughter. The Court therefore concluded that in this way, the Flemish and Walloon legislators had sought a proportionate alternative to the obligation of prior stunning, in taking into consideration the right claimed by people of Muslim and Jewish faith to manifest their religion in the face of the growing importance given to the prevention of animal suffering in the Flemish Region and the Walloon Region. They ensured that they took a measure that did not exceed what was necessary to achieve the goal pursued.
There was also a claim by the applicants, submitted rather late in the day, that they were being treated differently from hunters and fishermen without objective justification in breach of the prohibition on discrimination under Article 14. The latter are excluded from the scope of application of the legislation in question and do not have the obligation to first stun the animals.
The Court noted in response that, first of all, it was not for it in this case to rule on the compatibility of hunting and fishing with animal welfare, as this question went beyond the scope of the present case. Next, assuming that the difference in treatment complained of was based on a ground of discrimination prohibited by Article 14 of the Convention, the applicants had not demonstrated that they were in a situation analogous or comparable to hunters and fishermen. Indeed, the situation of Jewish and Muslim practitioners who wish to consume meat resulting from ritual slaughter differs from that of hunters and fishermen who kill animals. Furthermore, these killing conditions turn out to be significantly different.
There is interesting material on the tests of proportionality and the questions of subsidiarity and margin of appreciation for signatory states in the concurring judgment of Judges Koskelo and Kūris which are beyond the scope of this post.
